Filed 2/18/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Conser vator ship of the Person of A.E. 2d Civil No. B297092 (Super. Ct. No. 56

- 2018

- 00518054

- PR

- CP

- OXN) (Ventura County)

KRISTINE A

. ,
Petitioner and Appellant,

v.

VENTURA COUNTY PUBLIC GUARDIAN, as Conservator

, etc.,

Objector and Respondent.

A prospective conservatee who suffers from Autism Spectrum Disorder

, regardless of the degree of mental impairment, has due process right s. The Legislature has provided protection for a “special needs” person. Presence in court so that the trial judge may see and hear the person is a

n ecessary component of the process. Such a person m ay fear coming to court and will , generally speaking, fear change. Fear2

of a change in the living arrangement is especially true where the person has lived with the same parent for 26 years.

Kristine A

. , mother, appeals t he t rial court’s order denying her p etition to be appointed conservator of her 26

- year

old “ autistic ” daughter, A.E. She also appe als the trial court’s sua sponte order appointing the Ventura County Public Guardian as the permanent limited conservator of A.E.’s person. A.E. did not appear at the hearing o n the petition o r tell anyone she w as

wa iving her right to be present. We reverse . T he trial court failed to make the requ isite finding that A.E. did not want to attend the hearing, or could not be produce d for the hearing due
to medical inability

, or that her appearance was likely to cau se serious and immediate physiological damage. (Prob. Code, § 1825, subds. (a) (2)

- (3) & (b) , (c) .) 1 We need not, and do not, reach other constitutional and statutory issues.

Facts and Procedural History A.E. is 26 years old . She suffers fr om Autism
S pectrum Disorder, and has lived with appellant most of her life

. A.E. does not like to be touched, is resistant to hygiene and self

care, and has been placed on several psychiatric holds (Welf. & Inst. Code, § 5150 ) for Psychotic Disorder NOS, anxiety, po st

traumatic stress disorder, depression, and intermittent explosive
disorder. On September 25, 2018, appellant filed a petition to be appoint ed conservator of the person so that she could
authorize medical treatment

. A.E. had a painful tooth absces s bu t no dentist would treat her without a court order even though
A.E. was a Ventura County Tri

- County Regional Center (Tri

1 All statutory references are to the Probate Code unless otherwise stated

.3

Counties) client

. Lanette Hatch, a licensed physician assistant

,

s ubmitted a declaration that A.E. lack ed the capacity to give
informe d consent to any form of medical treatment.

Five weeks after the petition was filed, the court investigator reported that she was unable to communicate with
A .E. The r eport summarized a lengthy history of referrals to child protective services and Adu lt Protective Ser vices for abuse
and neglect . B ut many of the referrals were unfounded or inconclusive. Tri

- Counti es advised that A.E. lacked the ability to
make medical decisions a nd that appellant was “doing her best for” A.E. but had declined services in the past

. The court investigator recommended that appellant’s petition be denied and that the public guardian be appointed as A.E.’s conservator

. T he public guardian did not file a petition to be appointed as

conservator

.

T he trial court appointed t he public defender to represent A.E. (§ 1471, subd. (c)) and continued the matter so Tr i

Counties could comp lete A.E.’s evalu ation

. It also denied appellant’ s temporary request for conservator ship and appointed the Ventura County Public Guar dian as tempor ary conservator

.

Two months later , Doctor Tammy K. Brandt prepared a written evaluation recommend ing a limited

conservator ship for A.E.’s medical treatment. D r . Bran d t did not rule out appellant as a conservator but was concerned about the prior referr als for neglect and alcohol abuse. 2

A month later , the trial court discussed the matter
with counsel and appellant. The public defender , who

2 Appellant was convicted of 1998 Colorado misdemeanor s , driving without a license, driving under the influence, and

r eckless endangerment.4

represented A.E., stated that A.E. was living with appellant and “I can’t point to anything that says [appellan t] is not d oing a good job at this point. ” Appellant was concerned about A.E.’ s tooth
ab s cess and told the court: “I found a dentist that takes care of adult autism, . . . and [A.E.] needs this. She ’s in so much pain that she’ s acting out . . . [a] nd I don ’ t have the [temporary]

conservator [ship] to say, okay, you got . . . to go hone y. And she knows this, but she’s

– she’ s scared.

. . . I called the [public] guardian and they

- - they said there’s nothi ng we can do.
Call 9

- 1

- 1 .”

The trial court asked abo ut A.E.’ s permanent placement and was told it is “still up in the air.” The public defender stated that Tri

- Counties requested place ment at several facilities and “ all of them have declined to accept [A.E.] because
of . . . the autism and the be h avioral issues.” The publ i c guardian’s attorney stated that “we’ ve had similar cases, . . . where it can take up to a year to place someone with

– with [A.E.’ s] type of disabilities. ”

The trial court was concerned. “ [W] e’ re here now, pretty far down t he line, without medical treatment, without
dental treatmen t, without access to services.

. . . I have complete sympathy for [appellant and ]

. . . everybody involved, mostly A.E.

. . . And I think that I ’ve got to do what’ s best

– appoint the

person or en tity who is going to make things happen in a much more quick manner than they have happened.” The public guardian’ s attorney said the public guardian, acting as A.E.’ s
conservator could work with Tri

- Counties and appellant but conceded “ the only choice wo uld be to leave [A.E.] at home [with appellant] with the in

- home services. ”5 Appellant’s trial counsel asked “ Why not Tri

Counties work ing directly with [appellant]? If [A.E.] is going to be at home with her mother, her mother needs to be the

conservator with these limited powers and work directly with Tri

Counties. If the Court wants to bring us back at the end of six months to see how things are going, great. I think that’ s appropriate. But I think [appellant] is the more appropriate person to be the conservator during this six

- month period or a year period while we’ re waiting to get her placed. She absolutely wants [A.E.] to get the help she needs. ”

The trial court appointed the public guar dian as the
limited co nservator of A.E.’s person and cl arified its order

.

“ [T]his is not an extension of a temporary appointment. T his is a permanent appointment.”
Discussion

Section 1825 , subdivision (a) requires that t he proposed conservatee “ be produced ” at the hearing on the guardianship petition un less certain exceptions are met

. 3 (See

, e.g., Conservator ship of John L. (2010) 48 Cal.4th 131, 146

3 Section 1825, subdivision (a) states: “ The proposed conservatee shall be produced at the hearing except in the following cas es: [¶] (1) Where the proposed conservatee is out of the state when served and is not the petitioner. [¶] (2) Where the proposed conservatee is unable to attend the hearing by re ason of medical inability. [¶] (3) Where the court investigator has reported to the court that the proposed conservatee has expressly communicated that the proposed conservatee (i) i s not willing to attend the hearing, (ii) does not wish to contest the establishment of the conservator ship, and (iii) does not object to the proposed
conservator or prefer that another person act as conservator , and the court makes an order that the propo sed conservatee need not attend the hearing. ”6

[ section 1825 procedure for proposed conservatee ’ s production
and attendance must be followed at hearing on LPS proceeding].) Section 1825, s ubdivision (c ) provides: “ Emotional or psychological instability is not good cause for the absence of the proposed conservatee from the hearing unless, by reason of such instability, attendance at the hearing is likely to cause serious and immediate physiological dama ge to the proposed conservatee. ” (Italics added.) There is no evidence of that. “ If the proposed
conservatee is unable to attend the hearing because of medical inability, such inability shall be established (1) by the affidavit or
certificate of a licen sed medical practitioner .

. . . ” (§ 1825, subd. (b).) Responden t argues: “There is nothing in the record
to indicate that A.E. desired to a ttend the hearing, . . . [and] the Cou rt Investigator’ s Report, the [Tri

- Coun ties ] report, and [appellant’ s] o wn p etition make it clear that A.E.’ s m ental and
emotional condition mad e her both unable and unwilling to attend the court hearing.” Th at does not satisfy section 1825.

The record is silent on whether A.E. was ask ed if she wanted to attend the hearing or agreed to the proposed public guardian conservator ship. Section 1825, subdivision (a)(3) provides that a proposed conservatee may be excused from attending the hearing if he or she “ expressly communicated ” that
he or she is unwilling to attend and does not contest the

conservator ship or oppose the proposed conservator

. This did not happen

. Respondent argues that appellant forfeited the
section 1825 issue b y not objecting

. Respondent cites no authority, and we have found none, that a biological pare nt can7

waive the section 18 25 rights of an adult proposed conservatee, regardless of the degree of mental impairment.

When a petition is filed t o es tablish a

con servator ship, the matter must be conduc ted ac cording to the law and proced ure re lating to the trial of civil actions, including trial by jury if requested by the proposed conservatee. (§ 1827

. )
The proposed co nser vatee is presumed to be competent and
retains all his or her legal and civil righ t s. ( § 810, subd. (a) .) The Legislature has declared that a conservator ship is to “ [p ] rotect the rights of persons who are placed under conservator ship

, ” to

“ [p]rovide that the heal th and psychosocial needs of the proposed

conservatee are met
, ” a nd to “ allow the conservatee to remain as independent and in t he least restrictive setting as possible. ” ( § 1800, subd s

. (a), (c), & (d).) A limited conservator may be appointed for a developmentally disabled adult to be utilized

“ only as necessary to promote and protec t the well

- being of the
individual ” and “ shall be des igned to encourage the development
of maximum self

- reliance and indep endence of the indiv idual

, and shall be ordere d only to the extent necessitated by the
indiv id ual’ s proven mental and adaptive limitations. ” (§ 1801, subd. (d).) The standard of pro o f for appointment of a

conservator is clear and conv in cing evidence (§ 1801, subd. (e))
and one of the goals of the conservator ship is to “ [p]rovide that
the health and psychosocial needs of the pr oposed conservatee are met.” (§ 1800, subd. (c).)

Ap pellant and A.E. complain there was no tes timony under oath, no opp ortunity for c ross

- examination, no opportunity
to examine the biological parents , caregivers, or inv estigators

, and that the conservator ship order violates the American with
Disab i lities Ac t (42 USC § 12101 et seq

. )

. We do not reach those8

issues because section 1825 require d that A.E. consent to the appointment of the proposed conservator or a showing had to be
made that A.E. was u nable or unw illing to attend the hearing. 4

“ Probate Code sec tion 1825(a)(3)’ s procedure perta ining to a proposed conservatee’ s production and attendance at the hearing must be followed . . . .” ( Conservator ship of John L.

, supra , 48 Cal.4th at p. 146.) Section 1825 is like the light switch to the
courtroom and un til it is turned on (i.e., satisfied), the trial court

c annot truly see the big picture. I t is precluded from ruling on the merits of a pe tition to appoint a conservator until it complies
with section 1825. Disposition

The judgment (order denying appell ant’ s petition for appointment of conservator and orders appointing the Ventura County Public Guardian as temporary and permanent limited

conservator ship of the person of A.E.) are reversed . The matter is remanded for further proceedings. We express no o pinion on how
the trial court should rule

, on the merits. Costs are awarded to appellant. CERTIFIED FOR PUBLICATION

.

YEGAN, J. We concur:

GILBERT, P. J. TANGEMAN, J.

4 The physician assistant saw A.E. once and submitted a declaration stating that “ [A.E.] has autism. The one visit I had with her she was able to follow very basic instructions with the help of her mother.”Roger L. Lund, Judge

Superior Court County of Ventura

_______________________ _______
MacC arley & Rosen, Mark MacCarley and Lisa MacCarley; Law Offices of Ann C. Schneider and Ann C. Schneider for Petitioner and Appellant.

Gerald J. Miller, under appointment by the Court of Appeal for Conservatee.

Leroy Smith, County Counsel, Mitchell B. Davis, Assistant County Counsel for Respondent.